Ellicott v. Lamborne

Mason, J., delivered the opinion of the court. This is an action on the case instituted by the appellee, an owner of a paper mill, against the appellant. The ground of the plaintiff’s action is fully set out in his declaration, as follows: The second count in the declaration alleges, that the de ¹³⁴ fendant, “whilst the said plaintiff was so possessed of his, said last mentioned mill and premises, with the appurtenances aforesaid, and so carried on his said trade and business therein, to wit, on the 1st day of October, in the year 1845, and on divers other days and times betwreen that day and the day of the impetration of the original wTrit of the said plaintiff against the said defendant in this cause, to wit, at the district aforesaid, wrongfully and injuriously deposited, and caused to be deposited in, upon and along the said last mentioned stream, above the said last mentioned mill and premises, great quantities of earth, clay, sand and other substances, being the refuse and spoil of certain ore banks, worked by the said defendant, and his partners or agents, in the neighborhood of said last mentioned stream, thereby raising in and upon the edges of the said last mentioned stream very high banks of such earth, clay, sand and other substances, which banks have been and are constantly washed by said last mentioned stream, and also worn by the falling of the rain, whereby great quantities of said earth, sand and other substances, have been and are carried down said last mentioned stream into the mill-dam of the said plaintiff, attached to the said last mentioned mill, and have filled and choked, and do fill and choke the said dam, in such a manner as to make said dam, in a great degree, useless to the said plaintiff, in the working of his said last mentioned mill, and the said plaintiff thereby and because said dam was so filled and choked, could not, during all or any part of that time, use his said last mentioned mill and premises, or follow on and exercise his said trade or business there, in so large, extensive and beneficial a manner as he might and otherwise would have done, but was thereby, during all that time, deprived of the use and enjoyment of his said last mentioned mill and premises, and of all the benefits, profits, gains and advantages, which he otherwise might and would have made by carrying on his trade and business therein.” The defendant pleaded the general issue, “not guilty.” In support of this count the plaintiff proved, that the mill was carried on by him as a paper mill; that the paper there ¹³⁵ manufactured was made of rags, which rags were washed before they could be made into paper; that the defendant deposited earth and clay upon the margin of the stream and in it, and that the mill pond was filled and choked up by the washings of said stream from said earth and clay, whereby the quantity of water for the use of the mill was lessened; and that the rags were washed by water introduced into the mill from the pond. The plaintiff then further offered to prove that he could not wash said rags, because the water of the stream was rendered impure and